Madras High Court
The Additional Chief Secretary To ... vs M.Balasubramanian on 30 June, 2022
W.A.No.1366 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.06.2022
CORAM
The Hon'ble Mr. Justice PARESH UPADHYAY
and
The Hon'ble Mr. Justice J.SATHYA NARAYANA PRASAD
W.A.No.1366 of 2022
1.The Additional Chief Secretary to Government,
Home (Police – XVII) Department,
Secretariat,
Chennai – 600 009.
2.The Director,
Fire and Rescue Services,
No.17, Rukmani Lakshmipathy Road,
Egmore, Chennai – 600 008. .. Appellants
Vs
M.Balasubramanian .. Respondent
Appeal preferred under Clause 15 of Letters Patent against the
order dated 22.10.2021 made in W.P.No.11234 of 2021.
For Appellants : Mr.V.Arun,
Additional Advocate General
assisted by
Mr.V.Nanmaran,
Additional Government Pleader
For Respondent : Mr.P.Wilson, Senior Advocate
for Mr.M.Habeeb Rahman
Page 1 of 11
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W.A.No.1366 of 2022
JUDGMENT
(Delivered by PARESH UPADHYAY, J.)
1. Challenge in this appeal is made to the order dated
22.10.2021 recorded on W.P.No. 11234 of 2021. This appeal is by the
respondent / State Authorities.
2. Mr.V.Arun, learned Additional Advocate General for the
appellant / State Authorities has submitted that, direction by learned
Single Judge, as contained in para : 7 is unsustainable, since the
same is in conflict with the proposition of law as contained in the
orders of this Court recorded on (i) W.A.No.599 of 2020 dated
02.09.2020 (TANGEDCO and others v A.Srinivasan) and (ii) W.P.Nos.
2165 of 2015 and 21628 of 2018 dated 15.03.2022 (P.Kannan v The
Commissioner for Municipal Administration and others) and therefore
the same be interfered with. Reliance is also placed on the contents
of the counter to contend that, the writ petitioner was not entitled to
any relief and reinstating him in service even on the post termed to
be 'non-sensitive post' as referred to by learned Single Judge is
difficult to be found and therefore that direction be interfered with. It
is submitted that this appeal be entertained.
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W.A.No.1366 of 2022
3. On the other hand, learned Senior Advocate for the
contesting respondent / original writ petitioner has submitted that,
the writ petitioner has been under suspension since 08.11.2019 and
continuance of suspension with payment of 75% of emoluments is
neither in the interest of the Government nor the officer and therefore
the direction by learned Single Judge is just and proper and therefore
no interference be made by this Court. Reliance is also placed on the
decisions of the Supreme Court of India in the case of (i) Ajay Kumar
Choudhary v Union of India and another reported in (2015) 7 SCC
291, (ii) State of Tamil Nadu v Promod Kumar and another reported
in (2018) 17 SCC 677 and (iii) M.S.Jaffarsait v Union of India reported
in 2017 SCC Online Mad 89. It is submitted that this appeal be
dismissed.
4. Having heard learned advocates for the respective parties
and having considered the material on record, this Court finds as
under:-
4.1 The writ petitioner is an Officer of Fire and Rescue
Services Department. He was trapped allegedly taking bribe which
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W.A.No.1366 of 2022
lead to institution of criminal proceedings and it is stated that, he is
being tried departmentally as well. He was deemed to be under
suspension in view of his initial arrest read with relevant Rules, which
is not the subject matter at present. That suspension has continued
from time to time by separate orders passed by the Government.
4.2 There were more than one petition before this Court, two
of which pertained to disposal of representations made by the writ
petitioner to the Government with regard to prolonged continuance of
his suspension etc., which again is not the subject matter of this
appeal. The subject matter of W.P.No.11234 of 2021 is challenge to
the order of continuing the writ petitioner under suspension as
indicated to him vide letter dated 26.09.2020. The writ petition was
filed and is decided vide order under challenge dated 22.10.2021.
Learned Single Judge, while finally deciding the petition has given
three directions. The petition was disposed of with the following
directions:-
“7. Considering the fact that the
petitioner has been placed under
suspension with effect from 08.11.2019,
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W.A.No.1366 of 2022
and even though the criminal proceeding
has been initiated against the petitioner,
the respondents are directed to reinstate
the petitioner into service in any non-
sensitive post where the petitioner will
not get any opportunity to tamper with
evidence against him in the criminal
proceeding that is pending against the
petitioner, within a period of two months
from the date of receipt of a copy of
this order.
8. It appears that no disciplinary
proceeding has been initiated against the
petitioner and therefore, the respondents
are also directed to initiate disciplinary
proceedings within a period of three
months from the date of receipt of a copy
of this order and complete the same
within a period of nine months thereafter.
9. The Department of Vigilance and
Anti-Corruption, Coimbatore, is directed
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W.A.No.1366 of 2022
to complete the investigation and take it
to its logical end in the criminal
proceedings initiated against the
petitioner by filing charge sheet if the
case is made out, within a period of
twelve months from the date of receipt of
a copy of this order.”
4.3 So far directions contained in para : 8 & 9 are concerned,
that is not under challenge and learned Additional Advocate General
has submitted that, the same is complied with. Therefore, the dispute
is with regard to the directions contained in para : 7, quoted above.
Grievance is mainly against the line 'the respondents are directed to
reinstate the writ petitioner into service in any non-sensitive post
where the petitioner will not get any opportunity to tamper with
evidence against him in the criminal proceedings .... '. It is this
direction of learned Single Judge, which is questioned in this appeal
by the State.
5.1 The facts noted in the further affidavit filed in this appeal
is taken into consideration by us, the essence of which is to the effect
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W.A.No.1366 of 2022
that, it is difficult for the State to find out the post which can be
termed to be a non-sensitive post. We reject this helplessness on the
part of the Government, so far the present case is concerned.
5.2 The counter was permitted to be filed, since it should not
appear that the Government did not have opportunity to put its case
before the Court. This is on the face of the very opening line of the
order of learned Single Judge that, 'no counter was filed in the writ
petition'. No litigant can be permitted to assail the order of learned
Single Judge on the ground, which is not pressed into service before
learned Single Judge, unless it is proposition of law. Keeping this in
view, the contents of the affidavit filed before us, could have been
ignored, however since the State is in appeal, relaxing that standard,
we have taken that into consideration.
5.3 So far the proposition of law is concerned, reference is
made to the decision of the Division Bench of this Court dated
02.09.2020 recorded on W.A.No.599 of 2020 and the decision of the
larger Bench of this Court recorded on W.P.No. 2165 of 2015 dated
05.03.2022. So far the decision of the larger Bench is concerned, we
find that, the very order pertains to the reference made to it about
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W.A.No.1366 of 2022
the interpretation of the decision of the Supreme Court of India in the
case of Ajay Kumar Choudhary. Principally it dealt with the deemed
lapse of suspension order as the consequence of not passing any
order regarding extension thereof for the reasons to be recorded in
writing. That is not the point at issue, so far this appeal is concerned.
That decision, therefore will not have any applicability so far this case
is concerned. However, para : 34 (iv) thereof may have some
relevance. It reads as under:-
“Revocation of suspension with a direction
to the employer to post the delinquent in
a non-sensitive post cannot be endorsed or
directed as a matter of course. It has to
be based on the facts of each case and
after noticing the reason for the delay in
serving the memorandum of charges/charge-
sheet.”
5.4 We find that, whether the suspension should be continued
for longer time or not, as held by the larger Bench, which is sought to
be relied by the learned Additional Advocate General also indicates
that, it has to be based on case to case basis. Taking that decision of
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W.A.No.1366 of 2022
the larger Bench into consideration, we have examined the directions
issued by learned Single Judge.
5.5 So far the decision of the Division Bench is concerned, in
the said case, the State pleaded that it was difficult for it to find any
non-sensitive post for an Assistant Engineer. The Division Bench, in
the facts of that case, was persuaded to accept the helplessness of
the State that, Assistant Engineer could not be posted on any other
post which can be said to be non-sensitive post. Therefore, that
decision can not be said to be the proposition of law.
5.6 So far the facts of this case is concerned, we find that,
the writ petitioner is working in Fire and Rescue Services
Department. To contend that, the State is not in a position to find any
post, where an officer can be posted, who will not be in a position to
resort to any corrupt practice, would show more the failure of the
administration less the de-merits of the writ petitioner. The resources
of the State can not be permitted to be wasted with such
helplessness. We find that, the discretion exercised by learned Single
Judge that, there is no point in continuing the writ petitioner under
suspension indefinitely and he be posted on any non-sensitive post,
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W.A.No.1366 of 2022
in the facts of this case, can not be said to be an error, which may
call for any interference, in exercise of powers under Clause 15 of
Letters Patent.
6. For the above reasons, this writ appeal is dismissed. No
costs. C.M.P.No.8752 of 2022 would not survive.
(P.U., J) (J.S.N.P.J.)
30.06.2022
Index:No
ssm/14
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W.A.No.1366 of 2022
PARESH UPADHYAY, J.
and
J.SATHYA NARAYANA PRASAD, J.
ssm
W.A.No.1366 of 2022
30.06.2022
https://www.mhc.tn.gov.in/judis
